Point of Law: Order XXVI Rule 10 of CPC provides procedure of Commissioner.

JUDGMENT :

A. BADHARUDEEN, J.

1. This appeal is at the instance of the defendants in OS No. 243/2014 on the files of the Munsiff Court, Nadapuram, where the defendants suffered decree and judgment dated 10.06.2019 at the hands of the respondent herein, who is the plaintiff in the suit. Though, the appellants herein challenged the verdict of the Munsiff Court granting decree of prohibitory injunction acting on Ext.C4 plan, the learned Sub Judge, Vadakara, also dismissed the appeal as per judgment dated 27.02.2021 in AS No. 17/2019.

2. Heard the learned counsel for the appellants as well as the learned counsel for the respondent.

3. This appeal was admitted by my predecessor on raising the following questions of law:

(1) Whether the two courts below wrongly decreed a suit for permanent prohibitory injunction in respect of an area of 7 acres and 39 cents, when the claim of the plaintiff was only as regards 5 acres and 14 cents by way of an amendment subsequent to the commission report filed in this case?

(2) Whether the two court below ascertained the factum of possession on the date of suit without examining the Advocate Commissioner and Surveyor?

(3) Whether the two courts below granted a decree for permanent prohibitory injunction in respect of an area of 5 acres and 14 cents, particularly, when the plaint schedule description and the plan has not become part of the decree?

4. I shall refer the parties as ‘plaintiff’ and ‘defendants’ for convenience.

5. The facts of the case: The suit is one filed for permanent prohibitory injunction, restraining the defendants from trespassing upon the plaint schedule property, where the plaintiff asserted title and possession on the strength of a gift deed No. 18/1970. Subsequently the plaint was amended, limiting the extent of land to 5.14 acres in tune with second commission report and plan. According to the plaintiff, the plaint schedule property having an extent of 7 acre 42 cents originally belonged to the father of the plaintiff and the defendants, Kunhikanaran. While Kunhikanaran was in possession and enjoyment of the same, Kunhikanaran executed a gift deed in favour of the plaintiff. The plaintiff accepted the gift deed and took delivery of the same. Thereafter, he made improvements in the property. Out of the plaint schedule property he had exchanged 2 Acre 4 ½ cents to one Nanu and sold an extent of 8.892 Ares to one Pradeepan. Thus the remaining extent of 5 Acre 14 Cents absolutely belonged to him and he had been in possession and enjoyment of the same. The defendants have no right over the plaint schedule property and there exists proper demarcating boundaries in between the plaint schedule properties and other properties. At the time of execution of the gift deed in favour of the plaintiff, his father had title over property on the eastern and northern sides of the plaint schedule property. Accordingly, father executed a registered Will No. 15/1979 dated 07.03.1979 regarding those properties. Thereby property having an extent of 8 Acres was bequeathed to the defendants. Thereafter the defendants partitioned the said property among themselves as per partition Karar No. 2149/1991 of SRO, Nadapuram. When the plaintiff, who permanently settled in Koothuparamba about 25 KM away from the plaint schedule property, reached the plaint schedule property on 03.12.2014, defendants 1, 4 and 5 raised dispute and claimed right over certain portions of the plaint schedule property and objected the plaintiff from taking the usufructs. It was at this juncture, this Suit was filed.

6. The defendants resisted the suit and contended that in the year 1954, Kunhikanaran obtained title to properties including the plaint schedule property. But the legality of the gift deed relied on by the plaintiff was seriously disputed. Even though the defendants admitted that the plaint schedule property originally belonged to their father and he was in possession and enjoyment of the same, it was contended that in 1954, thei